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HUMANITARIAN RELIEF WHEN A PETITIONER DIES
by Michael J. Gurfinkel, Esq.
By law, a family petition ordinarily "dies"
upon the death of the petitioner. So, for example, if a son or
daughter was under petition, but their parent died before a visa
became available, the petition is usually revoked or terminated.
It does not matter that the petitioner was "alive" when
he petitioned the child. The petitioner must remain alive
until the child is granted their greencard.
However, in some circumstances, the Immigration
and Naturalization Service can, for "humanitarian reasons",
allow a petition to proceed, even though the petitioner dies,
if the INS determines that revocation is not appropriate. Among
the factors that the INS would consider for "humanitarian
revalidation" are:
1. Disruption of an established family unit;
2. Hardship to U.S. citizen or permanent resident relatives;
3. The beneficiary is elderly or in poor health;
4. The beneficiary has had lengthy residence in the United States;
5. The beneficiary has no home to go to;
6. Undue delay by INS or Consular Officers in processing the petition
and visa; and
7. Strong family ties in the United States.
The INS' decision whether or not to grant this humanitarian
relief is purely discretionary (meaning it's up to INS to decide).
The statutes and regulations do not really restrict the factors
the INS may take into account, or specify the amount of evidence
required in order for you to obtain this humanitarian relief.
A request for humanitarian relief can be made to
the Local INS District Director. Obviously, since this type of
relief is discretionary (meaning it is up to the INS to
decide whether or not to grant this special form of relief), you
should make sure that you make a full, complete, and convincing
presentation to the INS, as to why you are deserving of this form
of relief. This may include a lot of documents, affidavits from
people who know you, and a vast amount of other supporting facts,
evidence, and documentation.
That is why you should consider seeking the assistance
of a reputable attorney, who can evaluate your situation to determine
your chances for obtaining this humanitarian relief and whether
it is available to you. The attorney you hire should be good in
the presentation and preparation of the request for humanitarian
relief, including what documents and facts should be presented
to the INS, so as to greatly increase your chances for obtaining
this form of relief.
In fact, in one case I handled, an American citizen
husband had died only months after the couple's wedding. The poor
widow had suffered through seven long years of agonizing uncertainty,
while her case was being handled by another attorney. When she
transferred the case to me, I repackaged and presented it to the
INS, and the woman was granted a green card for "humanitarian"
reasons, in a matter of only a few months. In that case, the facts
obviously did not change. The only difference was the proper packaging
and presentation of the case to INS. (Of course, as soon as the
woman got her green card, she immediately flew to the Philippines
to visit her mother and her home, because she had not seen them
in many, many years.)
In conclusion, while ordinarily a petition dies
with the petitioner, the law does allow, in certain cases, and
where appropriate, for the INS to, nevertheless, proceed with
the petition, even if the petitioner dies.
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